with negligent towage in bringing the barge into collision with the central abutment of the Willis Avenue Bridge, which crosses the Harlem river.

On the morning of September 18, 1907, the Isabella laden with coal was taken in tow by the steam tug Harlem River No. 2 at 96th street, East river, destined for 136th street, Harlem river. The Isabella was on the port side of the tug and another coal barge, the Eureka, was upon her starboard side. The tide was ebb, running from two to three knots an hour and, at the Willis Avenue Bridge, set strongly across towards the Bronx side of the river and against the right-hand abutment, which was of stone. The left-hand draw of the bridge was, at the time in question, filled with car floats with cars thereon, making it impossible to see through the draw and up the river beyond. When the No. 2 was about 250 feet from the bridge her pilot observed Transfer No. 7 with a large car float crossing from the Manhattan to the Bronx side of the river, directly across the passageway which he was to take. Seeing that it was impossible to pass, he reversed and, in order to avoid striking the stone abutment on the Bronx side, brought the port quarter of the Isabella against the central pier, causing the injury complained of.

Carpenter & Park, for appellant.

James J. Macklin and De Lagnel Berier, for appellee.
Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE, Circuit Judge (after stating the facts as above). The combination of circumstances which brought about the collision with the central abutment of the bridge was one for which the tug cannot be held responsible. The tide was ebb, setting upstream towards the Hudson river and against the Bronx abutment of the bridge. The tug was proceeding up the river with a tow on each side, the Isabella on the port side and another coal barge, the Eureka, on the starboard side. The Isabella was towed stern first at the request of her master, the entire width of the flotilla being about 61 feet. The width of the draw on the Bronx side was 120 feet, leaving a space of about 30 feet on either side, assuming that the tug navigated directly in the center of the draw. The Manhattan side of the draw was choked with car floats, making it impossible to see up the river on that side for some distance. As the No. 2 approached, the large tug No. 7, with a railroad float loaded with cars on her starboard side, projected herself without warning directly across the draw. The No. 2 was confronted with a sudden peril for which she was in no way responsible. She could not proceed on her course without collision with the float. the tide was setting across the draw, it was a difficult manœuvre to back without coming in contact either with the piling surrounding the central abutment or with the Bronx abutment, which was of stone. She did collide with the piling around the central abutment. No fault can be predicated of her action in this regard. It would have been remarkable if she had been able to stop and back her unwieldy tow against a cross tide without striking one or the other of these abutments. It is said that she should have signalled her intention to go through the draw, but we are referred to no rule requiring her to do so. She was navigating on the right-hand side of the river, intending to pass through the right-hand draw. There were no boats coming down the river and apparently her course was clear. Undoubtedly there was grave fault somewhere-first, in permitting the car floats to tie up in the western draw, not only obstructing the chan

As

nel but the view of navigators going up and down the river; second, in permitting the piling around the central pier to become out of order, and third, in permitting the unwieldy car float to close up the easterly draw without warning of her intention so to do. For these faults, however, the No. 2 is in no way responsible. It is said that she should have had a lookout, but we fail to see how a lookout would in any way have averted the disaster. He could have seen nothing which the pilot of the tug failed to observe. It is true that one of the witnesses, the master of the steam tug Mattie, which was following the No. 2, says that he saw the railroad float crossing the eastern draw when he was at 122d street, which is four blocks from the bridge, but later on in his testimony he makes it clear that it was not his intention to convey this impression. He says that when he saw No. 7 she was entering her slip on the Bronx side of the river and entirely clear of No. 2 and her tow and that he did not see the car float when it was obstructing the passage. Indeed, from the testimony and the diagrams furnished, we think it would be well nigh impossible to see the car float at the point first indicated by the witness.

This brings us to what are practically the only questions in dispute, namely: Was the Isabella injured by contact with the central pier, and if so, was the injury occasioned by conditions the existence of which the master of the tug knew or ought to have known? Assuming that the first question should be answered in the affirmative, we proceed to an examination of the second. The master testified that he did not know the condition of the spiling around the central pier below the high-water line. The testimony indicates that the obstacle which caused the injury to the Isabella was over four feet below the highwater line. A witness who made photographs at low water, after the accident, testifies to the dilapidated condition of the central pier, but we think it would be establishing too stringent a rule to hold tugs liable because their masters are not acquainted with the condition of the abutments of all the drawbridges along the river which are only visible at low water. In view of all the circumstances we cannot say, having in mind the other perils which confronted him, that the master of the No. 2 was at fault by reason of the contact with the central pier. The tug was neither a common carrier nor an insurer. The highest possible degree of skill and care was not required of her. A pilot navigating a narrow, crowded tidal stream crossed by many bridges is sufficiently occupied in avoiding visible perils and should not be charged with fault because, for instance, he is unaware of submerged projecting bolt heads in the piling of an abutment which, except in case of an unforeseen emergency, could not cause injury to his tow. The decree is affirmed, with costs.

CATCHINGS v. CHATHAM NAT. BANK.

(Circuit Court of Appeals, Second Circuit. July 26, 1910.)

No. 312.

BANKRUPTCY (§ 167*)-PREFERENCES.

Where a partner borrowed money of a bank, the notes being signed by him and indorsed by him in the firm's name, payment of the notes to the bank by the firm within four months of the partner's bankruptcy did not constitute a preference to the bank; it not having received any of the bankrupt's property.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 282; Dec. Dig. § 167.*]

In Error to the District Court of the United States for the Southern District of New York.

Action by Waddill Catchings, trustee in bankruptcy of Max Scheuer, against the Chatham National Bank. There was a directed verdict for defendant, and plaintiff brings error. Affirmed.

This cause comes here upon a writ of error to review a judgment of the District Court, Southern District of New York, in favor of defendant in error who was defendant below. The action was brought to recover $16,000, which it was averred defendant had received from the bankrupt within the four months' period, defendant knowing at the time of the transfer that it was intended thereby to give a preference to said defendant. At the close of the testimony a verdict in favor of the defendant was directed by the court.

Theodore Price (Henry S. Dottenheim, of counsel), for plaintiff in error.

Steele & Otis (F. H. Edwards, of counsel), for defendant in error. Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts as above). The facts are somewhat complicated, but, when they are fully stated, it will appear that the question presented is a simple one and has already been decided by this court.

Max Scheuer was petitioned in bankruptcy on January 9, 1906, having been insolvent for several months previously. From 1880 to 1892, he was a member of the firm of S. Scheuer & Sons, composed of his father and two of his brothers, Ralph and Isaac. In 1892 the father died and the three sons continued the business under the firm name. Max was the business man of the firm from a financial standpoint, who arranged for loans and dealt with the banks. In 1892, before his father's death, he negotiated a loan from the bank on his own note for $750, indorsing it in the name of the firm because the bank officers told him they required two names on all discounted paper. The firm and Max had separate accounts, and he deposited the proceeds in his own account. The loan was from time to time renewed, and was gradually increased until in 1903 the loans aggregated $16,000, at which sum they continued. The proceeds were deposited in Max's account, and as notes became due he paid them with his personal checks. Part of the money loaned, Max informed the bank, was for *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

his personal use and part for assessments on real estate owned jointly by himself and his father and later by him and his father's heirs. In December, 1905, the loan was represented by four notes of $4,000, each falling due January 8th, February 19th, March 12th, and April 11th, respectively, all signed by Max, and all indorsed by S. Scheuer & Sons. Besides this loan to Max the bank was creditor of S. Scheuer & Sons to the amount of $60,000. The evidence seems to indicate that part of that at least was on the notes of the firm, indorsed by one or other of the partners, but it may be that some part was represented by paper of customers of the firm which they had discounted. It is not material how it accrued. The amount of indebtedness is conceded.

Toward the end of December, 1905, Ralph informed the president of the bank that Max had been guilty of irregularities, that he had been stealing from the firm on a large scale and it was necessary to break with him, that they no longer wanted to continue in business with him. He also told the president that the real estate his father held had been sold. He asked that the direct indebtedness of the firm should be renewed, so that they could be continued in business. This the bank's officer agreed to do and to advance further loans, and witness said that he would assume the indebtedness represented by Max's notes with the firm's indorsements. Subsequently as each note came due it was paid by the firm with its own check.

On January 4, 1906, a written agreement was entered into between Max and Ralph whereby the former sold, assigned, and set over all his right, title, and interest in all the assets of the partnership and the latter agreed to pay therefor the sum of $16,000 by assuming the payment of the four notes.

In Mason v. National Herkimer Co. Bank, 172 Fed. 529, 97 C. C. A. 155, we had under consideration the question as to the effect of payment of a bankrupt's note by the indorser who upon such payment credits the amount against an indebtedness due by such indorser to the bankrupt. The proposition was contended for that the bank has thereby received a preference. We held that:

"The one thing absolutely essential to a preference is that the bankrupt transfer some portion of his property to the creditor. If the creditor receive none of the bankrupt's property, there is no preference. And that is the pri mary difficulty with the complainant's case. The defendant bank received no property or money of the Newport Company. The Sheard Company as indorser of the note took it up and paid its own funds therefor."

This ruling is controlling of the case at bar. A distinction is sought to be made by suggesting that the firm was not liable on these notes: but we are not satisfied that such is the case. The signature of the firm's name was by the partner who had charge of the financial business of the concern, the same partner who signed the firm's name as maker on the notes which one or other of the partners indorsed. The bank was not chargeable with knowledge of the dealings of the partners between themselves, or with what arrangements they might have made as to how money should be borrowed by discount of notes and how the proceeds of such notes should be distributed. Apparently when the bank and Ralph made their arrangements the former could

have obtained judgment against the firm if it had defaulted on the notes which bore its indorsement, and nothing in the record satisfies us that such appearance was deceitful.

The judgment is affirmed.

In re OZARK COOPERAGE & LUMBER CO.

(Circuit Court of Appeals, Eighth Circuit. May 3, 1910.)

No. 100.

BANKRUPTCY (§ 184*)—SALE OF PROPERTY BY BANKRUPT—Validity—SUFFICIENCY OF DELIVERY.

Petitioner contracted in advance for the purchase of the lumber sawed at bankrupt's mill at stated prices for the different grades, The contract provided that as sawed the lumber should be piled in a specified manner: that twice each month petitioner should have the new piles estimated and should then make a payment thereon of $10 per thousand, and have each pile numbered and branded with its initials "O. C. & L. Co.," and that such acts should constitute a full delivery of the same. Held that, considering the nature of the property, such delivery was sufficient under Rev. St. Mo. 1899, § 3410 (Ann. St. 1906, p. 1940), providing that "every sale made by the vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of possession of the things sold, shall be held to be fraudulent and void as against the creditors of the vendor or subsequent purchasers in good faith," and that petitioner acquired title and possession of the lumber so estimated, set aside and marked within four months prior to the bankruptcy as against the bankrupt's trustee.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 275; Dec. Dig. § 184.*]

Petition for Review of Proceedings of the District Court of the United States for the District of Missouri, in Bankruptcy.

In the matter of Joseph H. Huggins, bankrupt. On petition by the Ozark Cooperage & Lumber Company to review an order of the District Court. Reversed.

George B. Webster, for petitioner.

Frank Kelly, for respondent trustee.

Before HOOK and ADAMS, Circuit Judges, and J. B. McPHERSON, District Judge.

HOOK, Circuit Judge. This petition to revise involves the ownership of 245,000 feet of hardwood lumber sawed at mills near Campbell, Mo., belonging to Joseph H. Huggins who was adjudged a bankrupt. The petitioner, the Ozark Cooperage & Lumber Company, claims by purchase from the bankrupt before the commencement of the proceeding in bankruptcy. It is not questioned that the transaction was in good faith, that the petitioner paid a substantial part of the purchase price and that both parties intended the title to the lumber should pass. The narrow question is whether there was such a delivery as is required by a Missouri statute. It is a question of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes